Supreme Court to Decide Fate of Nation’s First Religious Charter School
Supreme Court to Decide Fate of Nation’s First Religious Charter School
On January 24, 2025, the United States Supreme Court granted two petitions for certiorari in the cases of Oklahoma Statewide Charter School Board v. Drummond and St. Isidore of Seville Catholic Virtual School v. Drummond, setting the stage for what could result in the nation’s first religious charter school. These cases also represent another showdown between the Establishment Clause and Free Exercise Clause of the First Amendment to the United States Constitution.
The case began when St. Isidore of Seville Catholic Virtual School, an online Catholic school in Oklahoma, sought—and was granted—approval by Oklahoma’s state charter school board as a prelude to the parties entering into a contract that would allow the school to operate under the oversight of the charter school board. Like in Florida and other states, charter schools in Oklahoma are considered public schools and to be part of the public school system.
Concerned with allowing an openly religious school to operate as a public school, Gentner Drummond, the Oklahoma attorney general, sought relief from the Oklahoma Supreme Court, requesting the court cancel the contract between the state board and the religious school. Drummond’s argument was based on three grounds. First, he argued sanctioning a religious charter school was a violation of the Establishment Clause of the First Amendment, which generally prohibits the government from establishing a religion or favoring one religion over another. He also contended it violated the Oklahoma constitution’s similar prohibition on using public funds for the benefit of religious institutions. Finally, he stated this went against Oklahoma state law which, like Oklahoma’s constitution, broadly bars using public money to support religious institutions. The Oklahoma Supreme Court agreed with Drummond, finding the school was a government entity and state actor, and ruling that because St. Isidore’s intent was to operate as a religious school, it fell afoul of the constitutional and legal provisions prohibiting the state from using public money for the establishment of a religious institution.
The school and the state board then petitioned the United States Supreme Court to review the case, arguing the Oklahoma Supreme Court’s decision clashed with recent precedent concerning a different clause of the First Amendment: the Free Exercise Clause. These recent cases generally hold that a state violates the Free Exercise Clause when it excludes religious individuals or entities from otherwise publicly available benefits or programs solely because of their religious character. See, e.g., Carson ex rel. O.C. v. Makin, 596 U.S. 767 (2022); Espinoza v. Mont. Dep’t of Rev., 591 U.S. 464 (2020); Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449 (2017). In excluding St. Isidore, the petitioners argued, Oklahoma’s Supreme Court defied these rulings by the U.S. Supreme Court. Drummond asked the U.S. Supreme Court to decline review, reasoning that the prior cases were not applicable because they concerned private schools and entities, whereas St. Isidore would be functioning as a public school under the supervision of the state.
The U.S. Supreme Court granted certiorari, consolidated the cases, and set the cases for argument, with a decision possibly to come as soon as June or July. And because Oklahoma’s charter schools are considered public schools, the Supreme Court’s decision will likely reach beyond the boundaries of the Sooner State. Should the Court side with the school, it may open the door to religious schools in Florida (and elsewhere) applying for charter status and the benefits that come with it, including public funds. Given the potential effects this could have on the landscape of public schools in Florida, RumbergerKirk will be closely monitoring this case and any developments.